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M.S. Seethamma Vs. M.K. Neelamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberRSA No. 234 of 1976
Judge
Reported inILR1985KAR883
ActsHindu Law; ;Registration Act, 1908 - Sections 17(2); ;Coorg Land And Revenue Regulation, 1899
AppellantM.S. Seethamma
RespondentM.K. Neelamma
Appellant AdvocateS.G. Bhagavan, Adv.
Respondent AdvocateU.L. Narayana Rao, Adv. for R-1
DispositionAppeal dismissed
Excerpt:
(a) hindu law - partial partition -- in spite of partition it is open to parties to effect partial partition as regards property as well as persons separating from family.;in spite of a partition brought about in a hindu joint family governed by mitakshara school of law, it is open to the parties to effect a partial partition both as regards the property as well as the persons separating from the family.;if the compromise decree ex.a.1 is read as a whole, it would show-that the parties unequivocally intended to sever the jointness of the family among all the three branches and further each of the three branches was allotted separate shared in the entire joint family properties. if once ex.a.1 would show that the parties intended to get themselves divided and in fact they got themselves.....kudoor, j.1. this regular second appeal arises out of the judgment and decree dated 18-4-1975 passed in r. a. no. 22/71 by the civil judge at coorg, mercara dismissing the appeal brought by the legal representatives of the 2nd defendant andconfirming the judgment and decree dated 30-9-1964 passed by themunsiff at mercara in o.s. no. 436/51, a suit brought by the plaintiff for declaration of her title and also for possession of the plaint schedule properties together with future mesne profits and costs etc.2. the case of the plaintiff as set out in the plaint may briefly be stated as under.certain moolemajalu somayya and chinnappa along with belliappa and subbanna (defendants-1 and 2 in the suit) formed a joint hindu family governed by the mitak-shara school of hindu law owning certain.....
Judgment:

Kudoor, J.

1. This Regular Second Appeal arises out of the Judgment and decree dated 18-4-1975 passed in R. A. No. 22/71 by the Civil Judge at Coorg, Mercara dismissing the appeal brought by the legal representatives of the 2nd defendant andconfirming the Judgment and decree dated 30-9-1964 passed by theMunsiff at Mercara in O.S. No. 436/51, a suit brought by the plaintiff for declaration of her title and also for possession of the plaint schedule properties together with future mesne profits and costs etc.

2. The case of the plaintiff as set out in the plaint may briefly be stated as under.

Certain Moolemajalu Somayya and Chinnappa along with Belliappa and Subbanna (defendants-1 and 2 in the suit) formed a Joint Hindu Family governed by the Mitak-shara School of Hindu law owning certain movable and immovable properties. The said Somayya instituted O. S. No. 6/25 on the file of the then Subordinate Judge of Coorg against Chinnappa, his wife Muddamma, Belliappa, Subbanna and Jone Bangarakodi Derappa for partition of the joint family properties and separation of the plaintiff's share and allotment of the same to him. In that suit, a compromise decree came to be passed on 8-1-1926. Under the said compromise decree, the plaint 'A' schedule properties were allotted to the share of Chinnappa. The plaint 'B' schedule properties were recognised as the separate properties of Muddamma. Besides, Muddamma was also the owner of plaint 'C' schedule properties having purchased the same under two sale deeds dated 12-5-1915 and 10-9-1918, Chinnappa died in the year 1928 leaving behind Krishnappa his only son and his wife Muddamma. The plaintiff Neelamma' was married to Krishnappa son of Chinnappa. The plaint 'A' schedule properties came to be devolved upon Krishnappa on the death of his father Chinnappa. Muddamma also died on 8-8-1934, whereupon Krishnappa became the owner of the plaint 'B' & 'C' schedule properties by inheritance. Besides the plaint 'D' schedule properties were acquired by Krishnappa in the year 1941. Thus, Krislmappa was in enjoyment of the plaint 'A' to 'D' schedule properties as full owner during his life time. Krishnappa died on 3-10-1946. In the month of December 1946 a son by name Chandrashekara was born to Krishnappa posthumously and the said child also died a few days after it was born, thus leaving the plaintiff and her 3 daughters as his legal representatives. Thus, the plaintiff became the full owner of all the properties after the death of her husband and her son Chandrashekara, She being a helpless widow, allowed the suit properties being managed by defendants-1 and 2 on her behalf since 1946 after the death of her husband Krishnappa. The plaintiff was ignorant of her legal rights over the suit scheduleproperties On 10-5-1958 she was persuaded by defendants-1 and 2 to sign a deed and she signed the game on themisrepresentation of defendants-l and 2 and without understanding the true nature of the document and her legal position withrespect to the plaint schedule properties. She was completely misled by defendants-1 and 2. The said document is not a registered one and was not acted upon, besides it having no legal effect. She called upon defendants-1 and 2 by a registered notice dated 17-10-1960 to deliver possession of the plaint schedule properties to her, but they refused to do so. Thus, she brought the suit for declaration and possession together with certain other consequential reliefs.

3. Both defendants-1 and 2 filed their respective written statements.

4. The 1st defendant has admitted the plaint averments contained in paras -1 to 5. He has further stated that on 10-5-1968 a mahazar was drawn up before the Tahsildar. He was under the impression that the plaintiff had only a right to maintenance and she had no right over the suit properties.

He denied any wilful misrepresentation made to Plaintiff when the mahazar was drawn up. The properties dealt under the mahazar were the joint family properties of defendant-1 and 2. If the plaintiff's suit isdecreed, the would be put to great hardship. On these grounds, he sought for the dismissal of the suit.

5. The 2nd defendant in his written statement has admitted that Somayya, Chinnappa and defendants-1 and 2 formed the joint family; that Somayya filed the suit O.S. 6/25 in which a compromise decree was passed; that under the com-promise decree, the plaint 'A' schedule properties were allotted to the share of Chinnappa and 'B' schedule proper-ties were declared as the self-acquired properties of Muddamma; that the 'C' schedule properties were purchased in the name of Muddamma, but he contended that those properties were purchased by Chinnappa who was the kartha of the joint family in the name of his wife Muddamma benami for the joint family; that there was a dispute in the family and so Somayya filed the partition suit O.S.6/25; that inspite of the compromise decree, the joint familyconsisting of Chinnappa and defendants-1 and 2 continued and Somayya alone went out of the joint family; that 'C schedule properties along with the 'A' schedule properties were treated as joint family properties which was recognised by Muddamma and also by Krishnappa after the death of his father Chinnappa; that Chinnappa, his wife Muddamma and defendent-1 and 2 remained joint and after the death of Chinnappa, they continued to be joint along with Krishnappa till the year 1946; that the plaintiff who was the wife of the said Krishnappa gave birth to a posthumous child and it died after a few days; that even after the death of the said child, defendants-1 and 2 and the plaintiff continued as members of a Joint Hindu Family till the year 1958. He has further stated in the year 1958 differences arose among the members of the family and they got the family properties divided in a panchayat under a mahazar dated 10-5-1958. He further maintained that the mahazar is only a family arrangement and not a partition deed. Under the mahazar, arrangement was made to provide maintenance to the plaintiff and her daughters. The mahazar does not require registration. Since the plaintiff has accepted the mahazar, she is not entitled to challenge the same. He has further maintained that Krishnappa, husband of the plaintiff, had executed a will in respect of all his properties including his share of the joint family properties in favour of theposthumous issue with a further stipulation that in the event of his wife not delivering a male child, but a female, all the properties covered under the will shall go to defendants-1 and 2 who are his family members. Defendants-1 and 2 continued in possession of the plaint 'A' to 'D' schedule properties in accordance with the terms of the will till the year 1958. In the year 1958, the 1st defendant filed as application to the revenue authorities for the allotment of his share in the plaint schedule properties. Panchayatdars intervened and re-divided the properties between the defendants and providing maintenance to the plaintiff and her daughters. He has further stated that he has improved the properties by spending about Rs. 10,000/- which the plaintiff is liable to pay in the event of her success in the suit. The mahazar dated 10-5-1958 was executed and signed by the plaintiff out of her free will and consent and he finally submitted that the suit was brought in collusion with the 1st defendant.

6. The 2nd defendant died while the suit was pending for trial after he filed the written statement. Thereupon, his legal representatives were brought on record in his place as supplemental defendants 2(a) to 2(g).

7. On the pleadings of the parties the Trial Court raised the following issues.

[1] Whether after the consent decree in O.S. No. 6/25 late Chinnappa the father-in-law of the plaintiff, late Muddamma and defendants 1 and 2 continued to remain as Joint Hindu Family, recognising A, B, C and D schedule properties as joint family properties as pleaded by the 2nd defendant ?

[2] Whether subsequent to the death of Channappa, the defendants 1 and 2, Muddamma and plaintiff's husband Krishnappa remained as members of the Joint Hindu Family till the death of Krishnappa as pleaded by the 2nd defendant ?

[3] Whether the deed dated 10-5-1958 is a deed of family arrangement and not a partition deed and therefore it is not required to be registered as pleaded by the 2nd defendant?

[4] Whether plaintiff's husband late Krishnappa executed a will bequeathing all the properties to defendants - 1 and 2 in the event of death without a male issue as pleaded by the 2nd defendant?

[5] Whether the will alleged by the 2nd defendant is in existence and if in existence is true and genuine as pleaded by the 2nd defendant ?

[6] Whether the plaintiff is entitled to maintenance only as pleaded by the 2nd defendant

[7] Whether the 2nd defendant is entitled to improvement and if so how much ?

[8] To what reliefs if any is the plaintiff entitled

8.On appreciating the evidence both oral and documentary, the Trial Court decreed the suit as prayed for as per its Judgment and decree dated 30-9-1964.

9. The legal representatives of the 2nd defendant, being not satisfied with the decree of the Trial Court, carried the matter to the Court of the Civil Judge, Coorg, Mercara in R.A. No. 22/71 which came to be dismissed as per theJudgment and decree dated 18-4-1975. Hence, this second appeal fey the legal representatives of the 2nd defendant.

10. The 2nd Respondent (1st defendant in the suit) Belliappa died during the pendency of this appeal. His legal representatives were brought on record as supplemental Respondents in this appeal in his place.

11. Sri Bhagavan, the Learned Advocate for the legal representatives of the 2nd defendant, argued that the com-promise decree in O.S. No. 6/25 did not bring about the disruption of the whole joint family consisting of Somayya, Chinnappa and defendants-1 and 2. It was his argument that under the compromise decree, Somayya alone went out of the joint family whereas the remaining members of the joint family viz., Chinnappa and defendants-1 and 2 continued to be joint along with other members of the family. In that view, he argued that the partition effected under the compromise decree was a partial partition which isrecognised in law. According to him, the plaintiff is not entitled to maintain the suit claiming the suit schedule properties as her own in the presence of defendants-1 and 2 who are the members of the joint family of which her husband Krishnappa and his father Chinnappa were also theundivided members. His further argument was that the mahazar dated 10-5-1958 under which the members of the joint family entered into a family arrangement in respect of theenjoyment of the plaint schedule properties, is a document which does not require compulsory registration and as such it is a valid document binding upon the parties. Since the plain-tiff has admitted the mahazar dated 10-5-1958 in her plaint although contended that she was misled to sign thedocument, she is not entitled to ignore the mahazar and since she has not sought for the cancellation of the mahazar she cannot maintain the suit. Lastly, he contended that even otherwise the suit is barred by limitation, a plea which the legal representatives of the 2nd defendant raised for the first time in the lower Appellate Court and the finding of the Court below on the question of limitation is highlyerroneous. On these grounds, he maintained that the judgment and decree of the Court below calls for interference at the hands of this Court.

12. Per contra, Sri U. L. Narayana Rao, the Learned Advocate appearing for the plaintiff (1st Respondent),vehemently contended that the partition effected under the compromise decree dated 8-1-1926 was an out and outpartition bring about disruption of The entire family under which all the branches of the family were allotted separate properties for their share and absolute enjoyment in perpetuity. His furthercontention was that if the compromise decree is read as a whole, it would show that all the joint family properties werepartitioned among all the branches of the family for their absolute enjoyment in perpetuity and as such there is no force in the contentions urged on behalf of the legal representatives of the 2nd defendant that the compromise decree was only a partial partition under which Somayya alone went out of the family and the other members of the family remained joint. His second contention was that the mahazar dated l-5-1958 is an out and out partition deed which requires compulsory registration under Section 17(1)(b) of the Registration Act and since it was not registered that document is an invalid document, cannot be relied upon by the legal representatives of the 2nd defendant in support of their contention in this appeal. Thus proceeded Sri Narayana Rao contending that there is no merit in the argument that the suit is barred by limitation. Finally, he contended that there is no ground tointerfere with the concurrent findings of the Courts-below in the second appeal and the second appeal deserves to be dismissed.

13. In the light of the rival contentions canvassed in this Court, the following points arise for determination in this appeal :

(1) Whether the compromise decree dated 8-1-1926 is a partial partition under which Somayya alone went out of the joint family whereas the remaining members of the family remained joint?

(2) Whether the mahazar dated 10-5-1958 is compulsorily registrable under the Registration Act?

(3) Whether the suit is barred by limitation?

14. I shall proceed to consider these points in the order in which they were formulated.

15. Point No. 1 : It was the contention of Sri Bhagavan that the compromise decree dated 8-1-1926 passed in the suit brought by Somayya for partition and separation of his share of the joint family properties was a partial partition in as much as under the compromise decree Somayya alone went out of the family whereas Chinnappa and the present two defendants along with other members of the family remained joint and continued to be joint inspite of the said compromise decree. The position of law no doubt supports the view put forward by Shri Bhagavan that inspite of a partition brought about in a Hindu Joint Family governed byMitakshara School of Law, it is open to the parties to effect a partial partition both as regards the property as well as the persons separating from the family. On this position of law, it is stated at page 454 in Mulla's Hindu Law, FifteenthEdition under the head 'Partial Partition' in para 328 as under :

'It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, whileretaining their status as a joint family and holding the rest as the properties of a joint and undivided family. But where there is evidence to show that the parties intended to saver, then the joint family status is put an end to, and with regard to any portion of the property which remained undivided the presumption would be that the members of the family would hold it as tenants-in-common unless and until a special agreement to hold as joint tenants is proved. When a partition is admitted or proved, the presumption is that all the property was divided and a per-son alleging that family property, in the exclusive possession of one of the members after the partition, is joint and is liable to-be partitioned, has to prove his case.Just as a partition may be partial as regards the property, so it may be partial as regards the persons separating. This case arises when there is no general partition amongst all the members of the family.'

16. In the light of these principles of law, let me now proceed to consider the effect of the compromise 'decree dated 8-1-1926 passed in O.S. 6/25.

17. The compromise decree is marked as Ex. A-1. The parties to Ex. A-1 were Somayya, .the plaintiff and Chinnappa Belliappa, Subbanna, Muddamma and Derappa, the defend-ants. Admittedly the plaintiff and defendants-1 to 3 were the members of the undivided Joint Hindu Family. The 4th defendant Muddamma was the wife of Chinappa, the 1st defendant in the suit. The 5th Defendant Derappa is admittedly an outsider to the joint family of the plaintiff and defendant 1 to 3. There is no dispute between the parties that on the date of the compromise decree there were three branches in the joint family. The plaintiff Somayya and the 1st defendant Chinnappa each constituted one of the three branches whereas Belliappa and Subbanna jointly constituted the third branch being the sons of Ramappa who was the brother of Chinappa. Admittedly the suit was brought by Somayya for partition, separation and allotment of his share in the joint family properties both moveable and immoveable together with the mesne profits. This is also made clear in the preamble to the compromise decree Ex. A-J reads :

It is stated in Ex. A-l that plaint item Nos. 24 to 31 were the absolute properties of the 4th defendant Muddamma and item Nos. 32 :to 44 over which the family had no interest, belonged to the 5th defendant. This is clear from the aver-Ex.A-l states that item Nos. 1 to 2 3 were the immovablements contained in paras-1 and 2 of Ex. A-1. Para-3 of properties belonging to the family which were divided into three shares. This would show that the properties of the joint family were divided among the three branches viz., the branches of Somayya, Chinnappa and Belliappa and Subbanna who constituted one branch. Para-4 of Ex.A-1 gives the details of the properties allotted to the share of Somayya, the plaintiff in the suit. Para-5 on page-2 of Ex.A-1 gives the details of the properties allotted to the share of Chinnappa and Belliappa and Subbanna separately. The shares of the properties so allotted are described not only by the boundaries but also by extent. Provision is also made for the separate enjoyment of the 'bane' lands, the grazing lands etc., attached to family properties which were divided among the branches of the family. Regarding the dry lands, it is declared that it must be for the rights of all the three branches and any portion however if personally cultivated in the dry lands should be left to the rights of the concerned persons. As regards the family house, the family house was 'given to the branches of Chinnappa and Belliappa and Subbanna whereas Somayya was given money in lieu of his share of the house payable by the other two sharers. The jewellery as well as the moveables including the cattle were also dealt with in Ex.A-1 Thus it seems to me, having regard to the terms of Ex. A-1 and the attended circumstances under which it came to be passed, that the compromise decree brought about an out right partition among all the branches of the family and it is difficult to hold that Somayya alone went out of the joint family whereas the remaining two branches remained Joint as contended on behalf of the legal representatives of the 2nd defendant.

18. However, it was augured by Sri Bhagavan that although there are very many recitals in Ex.A-1 which tend to show an outright partition among all the branches, still there are few recitals found in Ex. A-l from which it could reasonably be inferred that the branches of Chinnappa and Belliappa and Subbanna chose to remain joint in spite of such recitals found in Ex. A-l. He pointed out that payment of Rs. 1200/-to Somayya towards his share in the family house and the further payment of Rs. 600/- to him to discharge the mort-gage debt payable by the joint family by Chinnappa and Belliappa and Subbanna without specifying the portion of the amount each of their branches has to pay, show that Chinnappa and Belliappa and Subbanna chose to remain joint. Similarly he proceeded to contend that sinceprovision was made under Ex. A-1 only regarding the separation of the share of Somayya in the joint family jewellery and the cattleand no such provision was made for the branches of Chinnappa. and Belliappa and Subbanna, would indicate that the remaining jewellery and the cattle were kept joint for the joint enjoyment of these two branches and from this circumstance also he wanted me to draw an inference that Chinnappa and Belliappa and Subbanna continued to remain joint. I do not think there is much force in this submission. As I stated earlier, in the compromise decree Ex. A- is read as a whole, it would show that the parties unequivocally intended to sever the jointness of the family among all the; three branches and further each of the three branches was allotted separate share in the entire joint family properties. If once Ex. A-l would show that the parties intended to get themselves divided and in fact they got themselves divided, then the joint family status is put an end to and with regard to any portion of the property which remained undivided, assuming that it is so regarding the jewellery and cattle among the branches of Chinnappa and Belliappa and Subbanna, the presumption would be that they would hold it as tenants in common to the extent of their respective shares in the jewellery and the heads of cattle left undivided. However, I am unable to reach the conclusion that those items of properties were in fact not divided between the branches of Chinnappa and Belliappa and Subbanna because there was no specific recital in Ex. A-l in that regard. On a consideration of the entire evidence and the circumstances, I hold that Ex. A-l brought about an out and out partition among all the branches of the family and not a partial partition as sought to be made out by the legal representatives of the 2nd defendant. This point is answered accordingly.

18A. Point Nos.t. 2&3 I shall take up for consideration these two points together as it is convenient to do so. The mahazar dated 10-5-1958 is marked as Ex. B. 11. Whatever contentions were urged in the Courts below regarding the nature of the document Ex.B.11, Sri Bhagawan, the Learned Advocate for the appellants, in the course of his arguments in this appeal submitted that Ex.B.11 amounts to a deed of partition and it would be difficult for him to contend that it would not fall within the ambit of sub-clause (b) of sub-section (1) of Section 17 of the Registration Act, 1908. However, he strenuously contended that the document Ex.B.11 is not required compulsory registration, not because it does not attract the provisions of Section 17(l)(b) but because it is saved under the provisions contained in clause (viii) of sub-section (2) of Section 17. On the other hand, it was maintained by the Learned Advocate for the plaintiff Sri U. L. Narayana Rao that Ex. B. 11 is not exempted from the legal compulsion of registration under Section 17(l)(b) because it is not an instrument of partition made by a Revenue Officer but only a private document of partition entered into by the parties at the intervention of the well-wishers of the family and thus not saved under clause (viii) of sub-section (2) of Section 17 of theRegistration Act.

19. In view of the stand taken by Sri Bhagawan, 1 do not propose to discuss whether Ex. B. 11 attracts the mandatory provisions of Section 17(l)(b) as those provisions do apply to Ex. B. 11 if it is not saved by clause (viii) of sub-section (2) of Section 17 of the Registration Act since it is a deed of partition. Thus the small point that arises for determination is whether Ex. B. II is an instrument of partition made by a Revenue Officer.

20. An instrument of partition or a document of partition could be made by a Revenue Officer under Chapter XI of the Coorg Land and Revenue Regulation (1 of 1899) (for short 'Regulation,). Chapter XI of the Regulation deals with arbitration. Sub-section (1) of Section 127 provides that a Revenue Officer may, with the consent of the parties, refer to arbitration any dispute arising before him in any matter and sub-section (2) provides that the Assistant Commissioner may, without the consent of the parties, refer to arbitration any dispute arising before him under the Regulation with respect to the property to be divided at a partition or the mode of making a partition among other matters. If an instrument of partition is a result of an arbitration on con-sent of the parties, then such an instrument would fall under sub-section (1) of Section 127 and if it is as a result of a suomoto arbitration ordered by the Assistant Commissioner it would fall under sub-section (?) of Section 127. Sections 128 to 135 contained in Chapter XI deals with the mode of referring the matter to the arbitration, the appointment of Arbitrators, the submission of the award by the Arbitrators, the procedure of presentation of the award and the effect of the award with which we are not very much concerned in this appeal. The main question we require to consider is whether Ex.B-11 is an instrument of partition made by a Revenue Officer falling under the category either of sub-section (1) or of sub-section (2) of Section 127 of the Regulation. To decide this question, it is quite relevant to advert to thedocument Ex.B-11. The preamble of the document which is very material in this regard reads:

Immediately after this preamble, the schedule of the proper-ties allotted to the share of Belliappa is detailed followed by the schedule of the properties allotted to his brother Subbanna. After the details of the two schedules of the properties allotted to the two brothers, the document provides for the mode and manner in which the plaintiff and her daughters are to be maintained by Belliappa and Subbanna. After the completion of the document, the document was signed by the panchayatdars, the plaintiff and defendants-1 and 2 and also some others. At the foot of the document, it is stated that the document was drawn up before the Tahsildar, Mercara by name K.P. Somappa who has put his signature with date 10-5-1958.

21. As to the circumstances under which Ex. Bill came into existence, the plaintiff has stated in her plaint that she was a helpless widow, that the defendants have been managing her properties since 1946 on her behalf, that she was not fully aware of her legal rights over the plaint scheduleproperties, that she was misled to her prejudice by the defendant, that she had no independent legal advice and in these circumstances on 10-5-1958 she was persuaded by thedefendants to sign the deed and she signed the same on account of themisrepresentation made by the defendants and with-out understanding the nature of the document and her true legal position with respect to the plaint schedule properties. The 2nd defendant in his written statement has statedregarding Ex.B-11 that under the terms of the will the properties of Krishnappa mentioned in plaint 'A', 'B' 'C' schedule devolved on defendants 1 and 2 accordingly they continued in possession and enjoyment of the schedule properties till the year 1958 that the 1st defendant had filed an application. to the revenue authorities to re-allot the properties to their respective shares, that the panchayatdars intervened and divided the family properties as per the mahazar dated 10-5-1959 and while dividing the properties between the 1st and the 2nd defendant they took into consideration the status of the plaintiff and granted her maintenance and the said mahazar has been acted upon to this day.

22. The plaintiff who was examined as P. W. 1 reiterated the averments made in the plaint in respect of Ex. B. 11. On behalf of the defendants, D.W. 3 and D.W. 10 gave evidence about the document Ex. B. 11 D.W. 3 is the son of the 2nd defendant who has stated in his evidence that the 1stdefendant, his father, the 2nd defendant and the plaintiff were divided in March 1958, that at the time of partition, the then Tahsildar, the Patel K.P. Chinnappa, Kutoodu Subbaiah and another were present, that there was a mahazar prepared, that all the properties of the family which were in the name of the 1st defendant and the husband of Neelamma weredivided, that all the suit properties were also divided, that the plaintiff was given maintenance and the properties were allotted to his (D.W. 3's) father and the 1st defendant. He further adds that the original mahazar was taken by. the Tahsildar.

23. D.W. 10 has stated in his evidence that on 10-5-1958, he was the Tahsildar in Mercara, that Peraje village was in his jurisdiction, that the parties had applied for settlement of the dispute, that he went to the village, that Patel and Shanbogue were also present, that the dispute was decided as mentioned in Ex.B.11, that the plaintiff gave her consent to Ex. B.11 and signed the original of Ex.B. 11 and that he had seen the parties enjoying the properties as per its terms. However, his evidence does not disclose that the partition effected under Ex. B. 11 was either by him or at his instance.

24. Neither the document Ex. B. 11 nor the oral evidence adduced in the case would show that the partition of the properties among the parties under Ex. B. 11 was made by D.W. 10 as a Revenue Officer in exercise of his powers conferred under Chapter XI of the Regulation. No doubt D.W. 10 has stated in his evidence that the application for the settlement of the dispute was filed to the DeputyCommissioner who forwarded it to D.W. 10. However, the original records pertaining to the proceedings taken on theapplication filed by the parties for settlement of the dispute were not made available. Thus I find absolutely no evidence in the case to show that Ex. B. 11 was an instrument of partition made by D.W.10 as provided under Chapter XI of theRegulation. Clause (viii) of sub-section (2) of Section 17 of the Act being an exception to the mandatory provisions contain-ed in clause (b) of sub-section (1) of Section 17 which provides for registration of the document compulsorily, the exception mustbe strictly construed and in that view I find it difficult to hold that Ex. B. 11 falls within the exception provided under clause (viii) of sub-section (2) of Section 17, Necessarily it follows that the original of Ex. B. 11 required registration under Section 17 of the Registration Act and since it was not registered, it would be clearly inadmissible in evidence and so an invalid document. As the document Ex.B. 11 was an invalid document, there was no need for the plaintiff to seek for the cancellation of it, she could ignore it as in the eye of law such a document is not in existence or nonest.

25. Sri Bhagwan, Learned Advocate, has frankly submitted in the course of his agreements that if the document Ex. B-11 is held to be a compulsorily registrable document, then the contention raised by him regarding limitation may not be necessary to be considered as that plea was taken on the ground that Ex. Bill is not a void but a voidable document. In view of the conclusion reached by me that Ex. B-1l required registration and so it is an invalid document, I find it unnecessary to consider the question of limitation as the suit is not barred by limitation in the circumstances of the case.

26. These are the only points that were canvassed in the appeal.

27. Having regard to the above discussion and also the conclusions reached by me, the appeal fails and the same is dismissed with costs.


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